Opinion
No. A06-787.
Filed October 3, 2006.
Appeal from the Kandiyohi County, District, File No. 34 PR-05-47.
Mike Hatch, Attorney General, Allen Yukon Louie, Assistant Attorney General, Mn, (for respondent).
Thomas E. Kramer, Mn, (for petitioner).
Considered and decided by Shumaker, Presiding Judge; Stoneburner, Judge; and Worke, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
Appellant challenges an order committing him indefinitely to a state security hospital as a sexually dangerous person (SDP) and a sexual psychopathic personality (SPP), arguing that the requirements for commitment were not proved by clear and convincing evidence. Because the record supports the order, we affirm.
FACTS
Before appellant Christopher Eckman's release from his prison term for sex crimes, the state filed a petition for his commitment as a sexually dangerous person (SDP) or a sexual psychopathic personality (SPP), or both. The court ordered that he be held at the state security hospital pending trial. After the trial, at which two court-appointed psychologists testified that Eckman met the statutory requirements for SDP and SPP classification, the court entered an initial order for commitment. Following the Minnesota Sex Offender Program (MSOP) staff's review and report, the court ordered Eckman's indefinite commitment as both a sexually dangerous person and a sexual psychopathic personality.
Eckman's exposure to sexually aggressive conduct began at an early age. As a child, he was sexually abused by a family friend, his babysitter, and his foster brother. He first came to the attention of the police in 1988 when he sexually assaulted his five-year-old half-sister, A.H.G. During an investigation, Eckman's mother admitted to the authorities that she was aware that Eckman had sexually abused A.H.G. on prior occasions. Eckman told the police that A.H.G. had removed her clothes voluntarily and that he had lain on top of her and placed his penis between her legs. He was unsure whether or not he had vaginally penetrated her. He also admitted to police that he had sexually abused A.H.G. and another seven-year-old female, M.J., in a similar manner in the past. Eckman was charged by a delinquency petition with second-degree criminal sexual conduct for his offenses against A.H.G. He admitted the conduct, was adjudicated a delinquent, and was placed at the St. Cloud Children's Home.
In 1993, when Eckman was 17 years old, he approached his seven-year-old half-brother, J.B.G., and two children from his neighborhood, J.K.M. and H.R.M. Eckman repeatedly asked them to play a version of strip poker where both the winner and loser had to disrobe. After the children refused, Eckman forced them to stay under the apartment-complex steps until they took their clothes off for ten seconds.
That same afternoon Eckman took H.R.M. and J.K.M. into the apartment complex's laundry room and told J.B.G. to stand outside the door. He directed the children to take their clothes off. J.K.M. refused, but H.R.M. complied by undressing. H.R.M. later told police that Eckman had also placed his finger into her vagina. Later the same day Eckman took J.K.M. and H.R.M. to his apartment and pressured them to drink beer until they agreed to comply with his commands. He took them to a closet in his apartment and again told them to remove their clothes. While H.R.M. was naked, Eckman instructed her not to move and used his finger to "scratch" her vagina. H.R.M. said this was painful.
When Eckman brought J.K.M. and H.R.M. home he was confronted by their 14-year-old cousin, A.B.F., about the forced disrobing and beer drinking. In response, Eckman threatened to kill A.B.F. if she told anyone about the incidents. A.B.F. and the children's mother reported the incidents to police that night. Eckman was arrested and charged with first-degree criminal sexual conduct and terroristic threats.
An investigation following the arrest revealed more victims. Eckman's seven-year-old half-brother, J.B.G., reported that on 12 to 20 occasions Eckman pulled his pants down, ordered him to sit on his lap, and then inserted his penis into J.B.G.'s anus. When J.B.G. cried or told Eckman to stop, Eckman told him to be quiet and threatened to not let him play video games if he told anyone. J.B.G. also reported that Eckman sexually abused J.B.G.'s two sisters, A.H.G. and five-year-old K.L.G., and that both had screamed during the abuse.
K.L.G. reported that Eckman had sexually assaulted her approximately 14 times. He had placed his finger and his penis in her vagina and anus. Occasionally Eckman would order K.L.G. to lie down and he would lie on top of her and place his penis in her vagina. K.L.G. also reported that she saw Eckman penetrate J.B.G.'s anus with his finger and penis.
After Eckman's arrest, a Kandiyohi County Family Service Department social worker stated in a letter that his agency had attempted to provide Eckman with treatment for the past five years. During that time Eckman was non-compliant; he sabotaged treatment, was unwilling to make any changes in his life, did not comply with a medication regimen, continued to be involved with criminal and delinquent acts, and had the attitude that if he did not "get caught, there's nothing wrong with it."
In 1993, the court concluded that Eckman was an extremely poor risk for juvenile treatment and that public safety would not be served if he was tried under juvenile law. Eckman was tried as an adult and convicted of second-degree criminal sexual conduct and terroristic threats for his crimes against H.R.M., J.K.M., and A.B.F. Eckman was also charged with two counts of first-degree criminal sexual conduct against J.B.G. and K.L.G. and pleaded guilty to one count in exchange for the dismissal of the second count. He was convicted and sentenced to prison, with a scheduled release date of May 16, 2005. While Eckman was serving his sentence, the state filed a petition with the district court, seeking to commit him as a SDP and SPP.
During the initial commitment trial, both court-appointed psychologists testified that Eckman met the criteria for commitment as an SDP or an SPP. At the review hearing, the court examined evidence submitted during the initial commitment hearing, the initial commitment order and findings of fact, purported evidence of changes in Eckman's condition since his initial commitment, and a treatment report submitted by MSOP in early 2006. MSOP diagnosed Eckman with pedophilia, attracted to males and females; polysubstance abuse; and antisocial personality disorder. MSOP concluded that "a person with risk factors presented by Eckman has a high risk for sexual re-offense" and that Eckman's condition had not changed since his initial commitment. The court determined that Eckman continued to be an SDP and SPP in need of treatment, and committed him to MSOP. Eckman appeals both the initial and indeterminate commitment order.
DECISION
Eckman argues that the record does not clearly and convincingly show that he engaged in a course of sexual misconduct, that the state failed to prove that he has an utter lack of power to control his sexual impulses, and that the expert testimony was conflicting and did not show a high likelihood that he would reoffend. He does not deny that he was convicted of crimes that fall within the definition of harmful sexual misconduct.
The district court may civilly commit a person under the Minnesota Commitment and Treatment Act if the state proves the need for commitment by clear and convincing evidence. Minn. Stat. § 253B.18, subd. 1(a) (2004). On appeal in a civil commitment case, the reviewing court is limited to examining the district court's compliance with the statute and whether its conclusions of law are justified by its findings. In re Knops, 536 N.W.2d 616, 620 (Minn. 1995). This court reviews the record in the light most favorable to the district court's decision and will affirm the district court's findings unless they are clearly erroneous. Id. As the trier of fact, the district court is entitled to resolve factual conflicts and weigh the credibility of witnesses. See Minn. R. Civ. P. 52.01. "Where the findings of fact rest almost entirely on expert testimony, the trial court's evaluation of credibility is of particular significance." Knops, 536 N.W.2d at 620.
Sexually Dangerous Person
A sexually dangerous person (SDP) is one who (1) engages in a course of harmful sexual conduct, (2) has manifested a sexual, personality, or other mental disorder or dysfunction, and (3) as a result, is likely to engage in acts of harmful sexual conduct. Minn. Stat. § 253B.02, subd. 18c (2004).
Eckman argues that the evidence does not show that he engaged in a course of harmful sexual conduct. We disagree. Clear and convincing evidence supports the court's determination that Eckman engaged in a course of harmful sexual conduct. Harmful sexual conduct is defined as "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another." Minn. Stat. § 253B.02, subd. 7a (2004). A sequence of harmful sexual conduct occurring over a period of time constitutes a course of harmful sexual conduct. In re Civil Commitment of Stone, 711 N.W.2d 831, 837 (Minn.App. 2006), review denied (Minn. June 20, 2006). The court is not limited to considering only conduct that resulted in a criminal conviction and may take into account incidents that extend over a long period of time. In re Civil Commitment of Ramey, 648 N.W.2d 260, 268 (Minn.App. 2002) (stating that court may consider conduct not resulting in conviction), review denied (Minn. Sept. 17, 2002); In re Irwin, 529 N.W.2d 366, 374 (Minn.App. 1995) (stating that conduct need not be recent), review denied (Minn. May 16, 1995).
On appeal, Eckman concedes that his convictions of first and second-degree criminal sexual conduct against H.R.M. and J.B.G. trigger the presumption that his conduct was harmful. He states, however, that he was accused of a relatively small number of incidents that were spread out over many years and that during his incarceration time he was released five times into the community without reoffending.
The evidence before the district court clearly and convincingly supports the court's determination that Eckman's conduct was "habitual" and a "course" of harmful conduct. Eckman's sexual abuse of his five known victims was repetitive and occurred over several months. The court noted that the "fact that twelve years has passed since Eckman's last known sexual offense appears to be caused more by lack of opportunity due to his placement in secure facilities rather than his conduct being non-habitual."
Furthermore, Dr. Riedel, a court-appointed psychologist, testified that Eckman's conduct was very likely to cause emotional and physical harm to his victims because they were children, testimony that Eckman does not dispute. Dr. Reitman, another court-appointed psychologist, testified that the serious physical and emotional harm likely to be suffered by Eckman's victims includes post-traumatic stress disorder, anxiety, major depressive disorder, and personality disorder. His testimony is supported by the statements of the victims. A.H.G. stated that she needed to attend therapy because of the abuse, and J.B.G. said the sexual contact hurt and caused him to scream and cry. Additionally, H.R.M. and J.K.M. both suffered from emotional and behavioral problems. Eckman failed to rebut the presumption that his sexual misconduct against his victims qualifies as harmful sexual conduct.
Further, clear and convincing evidence supports the court's findings that Eckman manifested a sexual, personality, or other mental disorder or dysfunction. Eckman does not dispute that he was diagnosed with a sexual, personality, or other mental disorder. Dr. Riedel diagnosed Eckman with antisocial personality disorder with possible borderline narcissistic and dependant traits, and acknowledged his previous diagnosis of not otherwise specified paraphilia, with sexual sadistic elements. Dr. Reitman diagnosed Eckman with paraphilia, pedophilia, sexual sadism, and antisocial personality disorder based on his determination that Eckman is attracted to both male and female children, that Eckman achieves sexual arousal from inflicting pain on his victims, and on an assessment of Eckman's early childhood and adolescent problems. Psychological tests conducted on Eckman previously, and at the time of the initial commitment trial, revealed significant emotional issues.
Finally, despite Eckman's allegations to the contrary, there is clear and convincing evidence that Eckman is highly likely to recidivate. Although the state need not prove that a person is unable to control sexual impulses, the existing disorder or dysfunction must result in inadequate control, making it highly likely that the person will reoffend. Minn. Stat. § 253B.02, subd. 18c(b) (stating that inability to control impulses is not required); In re Linehan, 594 N.W.2d 867, 876 (Minn. 1999) ( Linehan IV) (requiring high likelihood of recidivism).
Six factors are considered when examining whether an offender is highly likely to recidivate. In re Linehan, 518 N.W.2d 609, 614 (Minn. 1994). The court must consider: (1) the offender's demographic characteristics; (2) the offender's history of violent behavior; (3) the base-rate statistics for violent behavior among individuals with the offender's background; (4) the sources of stress in the offender's environment; (5) the similarity of the present or future context to those contexts in which the offender used violence in the past; and (6) the offender's record of participation in sex-therapy programs. Id.
Both psychologists noted that Eckman is highly likely to engage in acts of harmful sexual conduct in the future and is dangerous to other people because of his past convictions of known sex offenses; use of grooming and force on his victims; his shallow acknowledgement of his offenses; lack of insight; denial; and minimization. His relatively young age, male gender, criminal versatility, lack of treatment, and lack of relationships and support system all indicate a higher risk for reoffense.
Eckman scored a 36 on the Hare Psychopathy Checklist — Revised (PCL-R), indicating a high likelihood of reoffense. The associated recidivism rates for this score are 80% for general recidivism and 46.7% for violent recidivism. Dr. Reitman, a licensed psychologist since 1981, testified that he has never assigned such a high score to any other individual whom he assessed for risk of reoffense. Other tools used to predict recidivism, including the Sexual Violence Rating Scale (SVR-20), the Minnesota Sex Offender Screening Tool — Revised (MnSOST-R), and the Rapid Risk Assessment for Sex Offender Recidivism (RRASOR), all showed a high likelihood that Eckman would reoffend.
Sexual Psychopathic Personality
Status as a sexual psychopathic personality requires clear and convincing evidence of three elements: (1) the existence of either emotional instability, impulsive behavior, a lack of customary standards of good judgment, or a failure to appreciate the consequences of personal acts; (2) a habitual course of sexual misconduct that results from the presence of a condition in the first criterion; and (3) an utter lack of power to control sexual impulses such that the person is dangerous to others. Minn. Stat. § 253B.02, subd. 18b (2004).
Eckman argues that the state failed to prove that he has an utter lack of power to control sexual impulses and points to the fact that there are no allegations that he acted in a sexually inappropriate manner during his period of incarceration or during any of the five times he was on supervised release.
When considering an offender's utter inability to control his sexual impulses, the court looks at the nature and frequency of assaults, the degree of violence, the offender's relationship to the victims, the offender's attitude and mood, the offender's medical and family histories, the results of evaluations, the offender's refusal of treatment opportunities, the lack of a relapse-prevention plan, the presence of grooming behavior, the failure of the offender to remove himself from similar situations, and the existence of a period in which the offender controlled his sexual behavior. In re Blodgett, 510 N.W.2d 910, 915 (Minn. 1994); see In re Pirkl, 531 N.W.2d 902, 907 (Minn.App. 1995) (stating that refusal of treatment and lack of relapse-prevention plan can show utter lack of control), review denied (Minn. Aug. 30, 1995); In re Bieganowski, 520 N.W.2d 525, 530 (Minn.App. 1994) (noting that appellant's grooming victims and failure to remove himself from situations demonstrate lack of control), review denied (Minn. Oct. 27, 1994).
Dr. Riedel testified that, because Eckman's conduct was directed at young victims during an extended period of time with frequent recurrences involving physical and sexual violence, the nature, frequency and recency of his conduct support the determination that he has an utter lack of power to control his sexual impulses. Eckman willingly used physical coercion, threats, and physical assault to achieve compliance with his sexual abuse. The fact that Eckman's sexual abuse was directed toward children for whom he acted as guardian, as well as toward children with whom he had little to no prior relationship, attests to his utter lack of power to control his sexual impulses. Further, the record clearly shows that Eckman groomed his victims with video games and failed to avoid situations in which he would be tempted to reoffend.
The district court's determination that Eckman is emotionally unstable, lacks customary standards of good judgment, and fails to appreciate the consequences of his actions is supported by clear and convincing evidence. The district court found credible Dr. Riedel's determination that successful sex-offender treatment for Eckman is virtually impossible because he continues to deny his sexual offense against H.R.M., for which he was convicted after trial. Despite Eckman's claims of wanting to participate in treatment, "whatever programs he has been in, he has not only been a non-participant, he has been oppositional." Additionally, Eckman has expressed that he needs further sex-offender treatment only to address harm he has suffered, rather than the harm he may impose on others. Both doctors testified that at the time of the initial commitment trial Eckman had no knowledge of treatment principles and no plan for identifying or managing his problems. The court found the doctors' testimony of Eckman's likelihood of reoffense persuasive.
Clear and convincing evidence supports the court's determination that Eckman engaged in a habitual course of sexual misconduct. A habitual course of sexual misconduct requires similar incidents that form a pattern. See Bieganowski, 520 N.W.2d at 529-30. Dr. Reitman noted a pattern in Eckman's abuse, observing that his conduct was both repetitive and resistant to change.
Clear and convincing evidence also shows that Eckman is highly likely to reoffend. The court examiners testified that Eckman exhibited impulsiveness of behavior, lack of customary standards of good judgment, and failure to appreciate the consequences of his personal acts. They further testified that Eckman lacks meaningful insight, remorse, or empathy for his victims. The court found persuasive the psychologists' testimony regarding Eckman's sexual, personality, and other mental disorders, and his inability to control his harmful sexual misconduct. Other evaluators have agreed that Eckman has expressed little genuine remorse or guilt regarding his conduct. The court also noted that Eckman's continued sexual misconduct "despite consequences to him [resulting from his assault against A.H.G.] indicates that he does not appreciate the consequences of his personal acts[.]"
The district court's determination that Eckman is a sexually dangerous person and a sexual psychopathic personality is amply supported by the record.